Registrar rebuked for cut-and-paste error

United Kingdom
In Invalidity Application No 83707 in the name of Pass J Holdings Ltd in relation to trademark registration No 2512671 in the name of Ben Spencer (Case O-427-11, November 28 2011), Geoffrey Hobbs QC, sitting as an appointed person, has considered the issue of cutting and pasting in a judicial decision.
 
The contested trademark in this case was a figurative mark containing the words ‘online pallet’ in respect of "non-metal pallets for goods handling and/or loading, transportation and freight, including, but not limited to, pallets made of wood or plastic" in Class 20, and "transport, freight, distribution, warehousing and logistics services, including: the collection and delivery of goods; the transportation of goods, including, but not limited to, transportation by road; goods handling services, including: packaging or other conditioning of goods for transportation; the provision, including hiring, of artefacts for the purpose of transporting goods, including, but not limited to, the provision of pallets; the provision of warehousing or other goods storage facilities; the provision of one or more of the above services via internet ordering" in Class 39 of the Nice Classification.
 
In May 2011 the mark was declared invalid. The trademark proprietor appealed on various grounds, including serious procedural irregularity: it appeared that parts of the hearing officer’s decision had clearly been cut and pasted from an earlier decision, resulting in the insertion of incorrect dates of registration of various marks, and the inclusion of names of persons having nothing to do with the matter and with reference to the wrong section of the Trademarks Act 1994.
 
Setting aside the earlier decision and remitting the invalidity application to the registrar to be heard by a different hearing officer, the appointed person observed that he had no power to award costs against the registrar - but that he would have awarded costs if he had such power (it is reported that the registrar did the honourable thing and paid the parties' costs, presumably ex gratia).  
 
The appointed person could not deal with the substantive grounds of appeal at this stage without usurping the function of the registrar and depriving the parties of the opportunity to be heard by two levels of decision taking, since there would have been no appeal against his decision.
 
Cutting and pasting has become a regular feature of the preparation of judicial decisions at all levels, and it can be difficult to pick up cut-and-paste errors when proof reading. One may wonder how often cut-and-paste errors fail to get noticed.
 
Jeremy Phillips, IP consultant to Olswang LLP, London

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